PRACTICE DIRECTION - 3.4

CASE MANAGEMENT FOR BANKRUPTCY PETITIONS,
WINDING-UP PETITIONS AND
PETITIONS UNDER SECTION 168A
OF THE COMPANIES ORDINANCE

A     Scope of this Practice Direction

1.    This Practice Direction applies to all bankruptcy petitions and winding-up petitions that are opposed and to petitions presented pursuant to section 168A of the Companies Ordinance (Cap. 32).  

B     Draft Directions

2.    The petitioner and the respondent opposing the petition should submit draft directions for the conduct of the petition not less than 3 days before the call-over hearing or the directions hearing of the petition, or no later than noon on the preceding Friday (when the hearing falls on a Monday).  Except on the first occasion when the petition is listed for hearing before a Judge, the parties may submit agreed directions for the Court's consideration and approval and seek to vacate the call-over hearing or directions hearing before the Judge.

3.    Parties should give thought to the evidence to be filed on affidavit and avoid excessive rounds of affidavit.  They are expected to comply with directions given and the timetable laid down by the Court.  Unless sufficient grounds have been made out, the Court will not grant extensions of time or allow additional affidavits to be filed.

4.    In the absence of valid reasons, no cross-examination on affidavits will be allowed in petitions for bankruptcy or winding-up presented by a creditor.

5.    If a trial date is sought in the draft directions, each party shall state in the draft directions the estimated length of hearing.  Where it is envisaged that oral evidence would be given, each party should give time estimates (without taking into account the time estimates of other party) of:

(1)   his own opening submissions;

(2)   evidence-in-chief of each of his own witnesses;

(3)   cross-examination of each of the other side's witnesses; and

(4)   his own closing submissions.

C     Discovery

6.    In most bankruptcy or winding-up petitions presented by a creditor, no discovery of documents will be ordered.  If discovery is sought nonetheless, good grounds would have to be given to justify a departure from this practice.

7.    Where documents have been exhibited to affidavits filed by the parties, they should consider whether it is necessary to give discovery of any other documents.  In the event that mutual discovery by exchange of a list of documents is required, this should be confined to documents not hitherto exhibited in the affidavits filed, unless there are good reasons for departing from this practice.

D     Expert Evidence

8.    The Court will not give leave to a party to adduce expert evidence unless that party has:

(1)   identified the expert by name and field;

(2)   identified the specific issue or question to which expert evidence will relate;

(3)   considered the appropriateness of appointing a single joint expert in the case; and

(4)   considered the appropriateness of appointing an expert with regard to the progress and development of the proceedings.

E     Translation of Documents Exhibited in Chinese

9.    Where documents in Chinese are exhibited to an affidavit, the party exhibiting such documents should obtain an English translation of documents considered essential to his case or the essential parts of such documents within 28 days of the filing of the affidavit and submit the translation to the Court Language Office for certification.  A party should seek directions from the Court if he considers it appropriate to dispense with the preparation of English translation or some other direction(s) should be given in this respect.

F     Interlocutory Applications

10.    For all contested interlocutory applications in the petition listed for 30 minutes or more, Practice Direction 5.4 shall apply.

G     Pre-Trial Review and Trial

11.    The trial date of the petition is to be treated as a milestone date and will not be movable save in exceptional circumstances.

12.    In all petitions in which oral evidence is led, there will be a pre-trial review 4 to 6 weeks before the trial date.

13.    Unless otherwise directed, the petitioner is required to lodge in Court 7 days before the pre-Trial review:

(1)   the trial bundles; and

(2)   an agreed list of issues (or separate lists if no agreement can be reached) giving references of the relevant paragraphs in the petition and the affidavits filed.

14.    Trial bundles should be prepared in compliance with the requirements in Practice Directions 5.4 and 5.6.

15.    Unless otherwise directed, in all petitions,

(1)   the petitioner is to serve trial bundles (if there is no Pre-Trial Review and they have not been lodged as a result) 14 days before trial;

(2)   the petitioner is to serve his opening submissions, a jointly prepared chronology of events and dramatis personae where a number of individuals or companies may be mentioned in the course of submissions (see Practice Direction 5.4 paragraphs 2.2, 2.3 and 3) 7 days before trial; and

(3)   the respondent is to serve his opening submissions 3 days before trial.

H     Mediation

16.    Parties are reminded of Practice Direction 3.3 on voluntary mediation in petitions presented under sections 168A and 177(1)(f) of the Companies Ordinance.

I     Commencement Date

17.   This Practice Direction shall come into effect on 2 April 2009.

Dated this 12th of February 2009.